Comments, proposals and amendments
submitted electronically

Governments

COSTA
RICA

Article 4
GENERAL OBLIGATIONS 18, 19

1. States Parties undertake to ensure
the defense and promotion of all human rights and fundamental freedoms for all
individuals within their jurisdiction20 without discrimination of any kind on
the basis of disability. To this end, States Parties undertake:

a. to adopt legislative, judicial,
administrative and other measures, nationally and locally, to allow the enjoyment
of human rights and fundamental freedoms of persons with disabilities and,
where appropriate, to amend, repeal or nullify any laws and regulations incompatible
with such purpose.

b. To adopt measures oriented towards
the eradication of customs or practices that impede or make more difficult
the enjoyment of human rights and fundamental freedoms of persons with disabilities,
as provided in this convention;

c. to embody the principles of equality
of opportunity and non-discrimination on the ground of disability in their
national legislation, if not yet incorporated therein, and to ensure, through
law and other appropriate means, the practical realisation of these rights;

d. to make sure that the needs and
concerns of persons with disabilities are incorporated into economic and social
development plans and policies, and not treated separately;

e. to refrain from engaging in any
act or practice that diminishes the enjoyment of human rights and fundamental
freedoms of persons with disabilities, as provided in this convention and
to ensure that public authorities and institutions, as well as private institutions
providing public services, act in conformity with this Convention;

f. to take all appropriate measures
to eliminate discrimination on the ground of disability by any person, organisation
or enterprise;

g. to promote21 the development,
availability and use of universally designed goods, services, equipment and
facilities. Such goods, services, equipment and facilities should meet the
specific needs of a person with disabilities.

2. In the development and implementation
of policies and legislation to implement this convention, States Parties shall
do so in partnership with persons with disabilities and their representative
organisations.

EU proposal: This Article should be incorporated into new Article 3 bis and
delete title and separate article number.

1. States Parties undertake to ensure the full realisation of all rights and
fundamental freedoms for all individuals within their jurisdiction without discrimination
of any kind on the basis of disability. To this end, States Parties undetake:

EU Proposal: EU suggests following rewording: “In order to secure non-discrimination
of persons with disabilities, States Parties undertake in particular”:

(a) to adopt legislative, administrative and other measures to give effect to
this Convention, and to amend, repeal or nullify any laws and regulations and
to discourage customs or practices that are inconsistent with this convention;

EU Proposal: EU suggests following rewording:

“to take effective measures to review governmental, national and local policies,
and to amend, rescind or nullify any laws or regulations which have the effect
or purpose of creating or perpetuating such discrimination wherever it exists;
“

(b) to embody the rights of equality and non discrimination on the ground of
disability in their national constitutions or other appropriate legislation,
if not yet incorporated therein, and to ensure, through law and other appropriate
means, the practical realisation of these rights;

EU Proposal: EU suggests replacing “rights” with “principles” on the
first line and the last line, and suggests the addition of “of opportunity”
after “equality”on the first line.

(c) to mainstream disability issues into all economic and social development
policies and programmes;

EU Proposal: “States shall ensure that the needs and concerns of persons
with disabilities are incorporated into economic and social development plans
and policies, and not treated separately”

(d) to refrain from engaging in any act or practice that is inconsistent with
this convention and to ensure that public authorities and institutions act in
conformity with this Convention;

EU Proposal: EU suggests replacing “that is inconsistent with this convention”
with “of discrimination against persons with disabilities”, and replacing the
word “Convention” with “obligation”.

(e) to take all appropriate measures to eliminate discrimination on the ground
of disability by any person, organisation or private enterprise;

EU Proposal: EU suggests deleting “private” before “enterprise”.

(f) to promote the development, availability and use of universally designed
goods, services, equipment and facilities. Such goods, services, equipment and
facilities should require the minimum possible adaptation and the least cost
to meet the specific needs of a person with disabilities.

EU Proposal: Move (f) to Article 19.

2. In the development and implementation of policies and legislation to implement
this Convention, States Parties shall do so in close consultation with, and
include the active involvement of, persons with disabilities and their representative
organisations.

New 4(e) bis: Discrimination does not include provisions, criteria or practices
that are objectivity and demonstratively justified by the State Party by a legitimate
aim and where the means of achieving that aim are reasonable and necessary.

New 4(f) bis: In relation to the economic, social and cultural rights of this
Convention, States Parties undertake to give immediate effect to those aspects
of those rights which are capable of immediate implementation (including, but
not limited to obligation of non-discrimination in the enjoyment of those rights)
and in relation to other aspects of those rights, progressively the full realization
of those rights by all appropriate means.

2. In the development and implementation of policies and legislation to implement
this Convention, States Parties shall do so in consultation with persons with
disabilities (their families – new) and their representative organizations.
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KENYA

Draft Article 4
GENERAL OBLIGATIONS

Insert the phrase ‘including specific allocation of resources to satisfy obligations
towards persons with disabilities’ in 1 (c) after the word ‘programmes’ so that
it reads -

(c) to mainstream disability issues into all economic and social development
policies and programmes including specific allocation of resources to satisfy
obligations towards persons with disabilities;

Insert the following new paragraphs in 1 after paragraph (f).

to establish credible and effective structures to oversee implementation and
monitoring;

to ensure a barrier free society through the establishment of an effective enabling
environment;

to provide particular protection and support for persons with disabilities who
are vulnerable on account of situations such as conflict and natural disasters
or because of their status as children, women and persons living with HIV/AIDS.
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UN
System Organizations

ILO

Draft Article 4 General Obligations

• Welcoming the call for States Parties to undertake to mainstream disability
issues into all economic and social development policies and programmes, the
ILO underlines that such mainstreaming needs to be based on effective practice,
so that people with disabilities can benefit rather than becoming more disadvantaged
than before.

• Welcomes the emphasis on consultation with and active involvement of people
with disabilities in the development and implementation of policies and legislation,
and strongly recommends that the social partners and other stakeholders be also
involved and be specifically mentioned in article 4.2.

• Referring to footnote 19, the ILO would welcome an emphasis on progressive
realization of economic, social and cultural rights, since some countries may
face difficulties in immediately implementing some of the draft Convention provisions,
given the significant development effort which will be required in order to
make these rights a reality.
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OHCHR

See references to international human
rights conventions and jurisprundence.

WHO supports the need to mainstream disability issues in development and would
suggest the inclusion of health along with economic and social development in
Article 4(c). WHO would like to highlight the issue of progressive realization
of right to health in the draft convention. The principle of progressive realization
of this right imposes an obligation on Member States to move as expeditiously
and effectively as possible towards that goal (WHO, 2002).

National
Human Rights Institutions

Draft article 4 of the WG text is
in general satisfactory, but the Convention needs to address explicitly (as
did the Chair’s draft text):

(a) the question of whether some or all of the rights (and which ones) are to
be guaranteed immediately or realized progressively;

(b) the obligation to make available appropriate remedies;

(c) the obligations of States in relation to private or non-State actors. This
should clearly define the responsibility of States when State functions are
delegated or subcontracted to private entities.

Thank you Chair; there have been a few interventions this afternoon that seek
to delete Art. 4(1) particularly, the chapeau containing the phrase “within
their jurisdiction”

The National Institutions submit, Chair, that this deletion could potentially
discriminate against people with disabilities who may for instance be asylum
seekers or those who are not citizens.

Chair, while this may not be its intention, the removal of this chapeau could
result negatively in that not all people with disabilities would enjoy all their
human rights and fundamental freedoms.

Further to that, we believe that its removal would substantially narrow the
scope of this convention to one that focuses almost exclusively on non-discrimination
and thus moving away from a comprehensive international legal instrument.

We would therefore support the retention of Art. 4(1)

Asia Pacific Forum of National Human Rights Institutions

Article 4
Obligations with respect to economic, social and cultural rights

Proposal: amend proposal by Israel to read as follows:

3. In relation to [economic, social and cultural rights/the rights set forth
in articles *** of this Convention], States Parties undertake:

(a) to give immediate effect to the aspects of those rights which are capable
of immediate implementation (including, but not limited to obligations of non-discrimination
in the enjoyment of those rights); and

(b) in relation to other aspects of those rights, to take steps to the maximum
of their available resources, when needed within the framework of international
cooperation, with a view to achieving progressively the full realization of
those rights by all appropriate means.

Remedies
Proposal: include in article 4 the following paragraphs:

4. Each State Party to this Convention undertakes:

(a) To ensure that any person or class
of persons whose rights or freedoms recognized in the Convention are violated
shall have an effective and appropriate remedy (including as the right to just
and adequate reparation or satisfaction for any damage suffered as a result
of such discrimination), whether the violation has been committed by persons
or entities acting in an official capacity or by private persons or entities;

(b) To ensure that any person claiming such a remedy shall have his or her right
thereto determined by competent judicial, administrative or legislative authorities,
or by any other competent authority provided for by the legal system of the
State,; and

(c) To ensure that the competent authorities shall enforce such remedies when
granted.

5. States Parties recognize that access to effective remedies may require the
provision of free legal assistance to persons with disabilities and the modification
or flexible application of existing laws and practice regulating matters of
procedure and evidence.

25 May 2004

Article 4 (summary)

APF on behalf of National Human Rights Institutions:

We would like to address two issues. The first is the absence of an explicit
provision on remedies. In a convention, the purpose of which is to ensure the
effective and practical enjoyment of rights, we consider that a provision on
remedies is important. The Bangkok draft and Chair’s draft text for the Working
Group contained such a provision.

Concern about the inclusion of a provision on remedies reflects a view that
it would be inappropriate to include such a provision in a convention, which
guarantees economic, social and cultural rights. However, this fails to reflect
the developments of the past 20 years within the UN system – in particular the
work of the Committee on Economic, Social and Cultural Rights (CESCR) – which
make clear that some aspects of economic, social and cultural rights are justiciable
– these include guarantees of non-discrimination but are not confined to those
aspects.

The second point is a related one. The proposals so far made in relation to
economic, social and cultural rights emphasize the progressive realization of
these rights, without regard to the developments of the last 20 years, which
recognize that many aspects of economic, social and cultural rights are capable
of immediate implementation.

We believe the convention should reflect these developments and note that the
Bangkok and Chair’s draft text contained a provision of this sort.
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ONTARIO
HUMAN RIGHTS COMMISSION

Article 4 – General obligations

4.1: States Parties undertake to ensure the full realization of all human
rights and fundamental freedoms for all individuals within their jurisdiction
without discrimination of any kind on the basis of disability…

The Commission would support the view, as set out in footnote 20 to this draft
Article, that there should be a general obligation to include the rights of
non-citizens with disabilities who otherwise enjoy some degree of legal status
within the State. For example, it has been reported to the Commission that persons
with disabilities who are visitors to Ontario are ineligible to access para-transit
vehicles in some regions because of the lack of reciprocal agreements or waivers.

4.1(b): To adopt legislative, administrative and other measures to give
effect to this Convention, …

The Commission supports this provision. In Canada, all provincial and federal
jurisdictions have legislated the rights of equality and non-discrimination
on the ground of disability, set out in federal, provincial and territorial
human rights codes as well as being entrenched in the Charter of Rights and
Freedoms under Canada’s Constitution Act. In addition, Ontario has legislated
barrier-removal planning and reporting requirements for government and para-public
sectors under its Ontarians with Disabilities Act (2001).

4.1(e): To take all appropriate measures to eliminate discrimination on
the ground of disability by any person, organization or private enterprise;

In Ontario and other provincial and territorial jurisdictions in Canada, the
protection in human rights codes providing that persons with disabilities be
free from discrimination in employment, services, housing, contracts and trade
unions, extends beyond government and the public sector to include private enterprise.
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Non-governmental
Organizations

AUSTRALIAN
NGOs

Interventions made at the Third Session:

Article 4: General Obligations

Mr Chairman:

Thank you for this opportunity to address the Ad Hoc Committee.

We support in principle the Working Group’s current formulation of draft Article
4 but assert that an explicit statement with respect to international obligations
is a crucial aspect of the convention and should be added to the text. This
statement should be contained within Article 4 as such obligations are relevant
to the entire convention.

In light of the fact that approximately two thirds of the world’s 600 million
people with disability live in the developing world, it is essential that the
practical implementation of this convention involve a transfer of resources,
knowledge, technical assistance and policy advice to the developing world. Without
such a transfer, people with disability in developing countries will not benefit
from this convention. A clear framework of international cooperation will provide
the basis for this transfer.

It is important to understand that in many cases international cooperation will
cost very little, and will amount to information exchange about technical standards
and the provision of policy advice, based on domestic experience.

It is also important to recognise that there is already substantial resource
transfer occurring between developed and developing states for example through
bi-lateral aid programs and inter-governmental bodies such as the World Bank
and the World Health Organisation. It is critical that these aid programs respect
the human rights of people with disability, as enunciated by this convention.

It is of fundamental importance that there be international cooperation in the
area of trade and commerce. This is particularly so in relation to the setting
of compatible standards, for example standards governing accessibility in telecommunications,
copyright etc.

This will result in no extra outlay for developed states but vastly improved
outcomes for people with disability in developing countries

The initial paragraph should state, as in the ICCPR, that States “shall respect
and ensure the full realisation of all human rights and fundamental freedoms.”

Paragraph a) should also include by-laws, rules and we suggest to replace the
word “discourage customs” by “counter customs”.

EDF proposes to add to paragraph c) a reference to international cooperation,
which would oblige both the donor and the recipient of development cooperation
funds to take into account persons with disabilities.

EDF also considers it very important that a paragraph on remedies is included
in this article.

EDF also suggests to add a reference to positive action measures to paragraph
e) of this article.

EDF suggests a reference to the use of public procurement and public funds in
paragraph f) as a way of promoting Universal Design in goods, services, equipment
and facilities.

When implementing the General State Obligations, special attention should be
given to those disabled people more in danger of exclusion and discrimination,
including women with disabilities, disabled people from ethnic minorities, disabled
people living in rural and remote areas.

Paragraph 2 of this article is considered of vital importance. It could be strengthened
through a reference to the concept of partnership and to the provision of measures
which would strengthen the role and capacity of representative organisations
of persons with disabilities to play an active role in the implementation of
the Convention.

Comments at the Third Session:

Draft Article 4
General Obligations

Proposals for amendments to the current text of article 4 are largely based
on the EDF contribution.

Paragraph a) should also include by-laws, rules and EDF suggest to replace the
word ?discourage customs? by ?counter customs?.

EDF proposes to add to paragraph c) a reference to international cooperation,
which would oblige both the donor and the recipient of development cooperation
funds to take into account persons with disabilities.

EDF also considers it very important that a paragraph on remedies is included
in this article, as suggested in footnote 22.

EDF also suggests to add a reference to positive action measures to paragraph
e) of this article.

EDF suggests a reference to the use of public procurement and public funds in
paragraph f) as a way of promoting Universal Design in goods, services, equipment
and facilities.

When implementing the General State Obligations, special attention should be
given to those disabled people more in danger of exclusion and discrimination,
including women with disabilities, disabled people from ethnic or indigenous
minorities, disabled people living in rural and remote areas.

Paragraph 2 of this article is considered of vital importance. It could be strengthened
through a reference to the concept of partnership and to the provision of measures
which would strengthen the role and capacity of representative organisations
of persons with disabilities to play an active role in the implementation of
the Convention. EDF also supported the proposal of New Zealand on this paragraph.

Secondly, EDF reacted to the EU proposal and stated our concern on proposed
limitation of chapeau to non discrimination.

EDF also stated their concern about the last words in the paragraph on mainstreaming,
as disability specific plans and programmes are still needed. Not everything
can be mainstreamed. A twin-track approach is required.

Finally, moving paragraph 2 to article 25 will depend on final wording of article
25. A better alternative would be to include references in both.
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INDIAN
NGO CONSULTATIVE MEETING

Draft Article 4
General Obligations of the States Parties:

12. In this article, the expression “all individuals” should be substituted
with “men, women, boys and girls with disabilities” to clearly incorporate gender
prospective in the general obligations. The modified article would thus read
as “States Parties undertake to ensure the full realisation of all human rights
and fundamental freedoms for all “men, women, boys and girls with disabilities”
within their jurisdiction without discrimination of any kind on the basis of
disability.

This article sets out the obligations on governments towards persons with disabilities
as rights holders. We would wish to ensure active participation of children
in developing policies and legislation to implement this convention.

Suggested changes
g. In the development and implementation of policies and legislation to implement
this convention, States Parties shall do so in close consultation with, and
include the active involvement of, persons with disabilities, including
children, and their representative organisations.
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JAPAN
DISABILITY FORUM

< Draft Article 4 >
General Obligations

* As same as the JDF’s Comment 3 for Article 3.

* It is necessary to add a new paragraph stipulating the relevance to reasonable
accommodation.

JDF’s Comment to this part (1)
While acknowledging that a denial of “reasonable accommodation” constitutes
discrimination on the ground of disability whether it takes place in the public
sector or the private sector, it should be stipulated in the provisions that
State Parties bear the obligation to provide “reasonable accommodation” both
in the public and private sectors.

JDF’s Comment to this part (2)
The provision that conventional obligations are applicable to both the public
and private sectors should be included either in “Definition” or “Obligations
of State Parties” rather than stipulating it in every relevant provision.

Reference: International Convention on the Elimination of All Forms of Racial
Discrimination: Article 1-1 (Definition)In this Convention, the term “racial discrimination” shall mean any distinction,
exclusion, restriction or preference based on race, colour, descent, or national
or ethnic origin which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise, on an equal footing, of human rights
and fundamental freedoms in the political, economic, social, cultural or any
other field of public life.

Reference: The Convention on the Elimination of All Forms of Discrimination
against Women: Article 2 Policy Measures (obligations of state parties)States Parties condemn discrimination against women in all its forms, agree
to pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate means, the practical
realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions
where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with
men and to ensure through competent national tribunals and other public institutions
the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in conformity
with this obligation;

(e) To take all appropriate measures to eliminate discrimination against
women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or
abolish existing laws, regulations, customs and practices which constitute discrimination
against women;

(g) To repeal all national penal provisions which constitute discrimination
against women.
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LANDMINES
SURVIVORS NETWORK

DRAFT ARTICLE 4 COMMENTS

By including a provision expressly obliging states to give effect to the rights
contained in the convention, the Working Group text is reflective of the principle
that implementation of international human rights is essentially a domestic
issue. In addition, Draft Article 4 also includes the important prohibition
against discrimination in giving effect to the rights.

Footnote 18 highlights the concern of some Working Group members over the inclusion
of a paragraph on remedies because the draft text includes coverage of civil
and political rights as well as economic, social and cultural rights. Although
the International Covenant on Economic, Social and Cultural Rights does not
include a specific provision on remedies, the Committee on Economic, Social
and Cultural Rights has stated that the provision of judicial remedies is “among
the measures which might be considered appropriate, in addition to legislation,”
and that “the enjoyment of the rights recognized, without discrimination, will
often be appropriately promoted, in part, through the provision of judicial
or other effective remedies.” (Cf. Committee on Economic, Social and Cultural
Rights, General Comment 3, para. 5) Therefore, the absence of an explicit provision
on remedies in the International Covenant on Economic, Social and Cultural Rights
does not preclude the Ad Hoc Committee from including such a provision in this
convention, and the exclusion of such a provision re. civil and political rights
would depart from human rights law. (Cf. International Covenant on Civil and
Political Rights, Article 2(3))

Footnote 19 questions how the progressive realization of economic, social and
cultural rights should be addressed in the treaty. As Footnote 19 highlights,
the Convention on the Rights of the Child (Article 4) provides language that
may be helpful, as it clearly indicates which rights in the Convention would
be subject to progressive realization. It should also be noted that Article
4 of that convention also references the utility of international cooperation
in implementing rights.

Footnote 20 raises the question of whether the phrase “within their jurisdiction”
may be too broad and inclusive? The Ad Hoc Committee may wish to consider the
alternative phrasing “within its territory and subject to its jurisdiction.”
(Cf. International Covenant on Civil and Political Rights, Article 2(1))

Draft Article 4(1)(a) addresses the types of actions to be undertaken by states
to “give effect to this Convention” as well as those that should be changed
or discouraged because they are “inconsistent with this convention.” In order
to avoid ambiguity, or an overly limiting interpretation that could discourage
flexibility in implementation of the convention, the Ad Hoc Committee might
consider the alternative phrasing “inconsistent with the object and purpose
of this convention.” (Cf. Vienna Convention on the Law of Treaties, Article
18) This alternative phrasing may also be usefully incorporated in Draft Article
4(1)(d), which references acts or practices “inconsistent with this convention.”

Draft Article 4(1)(c) addresses the mainstreaming of “disability issues.” Reference
may be made to the UN Standard Rules usage of the term “disability aspects,”
which is a broader and more inclusive formulation. (Cf. UN Standard Rules on
the Equalization of Opportunities for Persons with Disabilities, Rule 14)

Draft Article 4(1)(e) is consistent with international human rights law in its
coverage of private actors. (Cf. Convention on the Elimination of All Forms
of Discrimination Against Women, Article 2(e); Convention on the Rights of the
Child, Article 3(1)) Such coverage is particularly important given increasing
privatization in the provision of goods and services once provided by public
entities.

Draft Article 4(2) requires development of implementation measures “in close
consultation with, and include the active involvement of, persons with disabilities
and their representative organizations.” This important concept could be further
developed through incorporation of the principle of “partnership with disabled
people,” (Cf. New Zealand’s View of a Convention on the Rights of Disabled People,
para. 28) as well as measures to ensure that people with disabilities understand
their rights under the convention and are able to participate in this partnership
process. (Cf. Convention on the Rights of the Child, Article 42)

The Ad Hoc Committee may also wish to consider the suggestion made in the Working
Group that Draft Article 4 include a paragraph addressing national-level monitoring
of the implementation of the convention. Such a provision would reinforce the
principle that domestic implementation is a State obligation.

Intervention by Jerry White on behalf of Landmine Survivors Network
May 24, 2004

Article 4
Obligations with respect to economic, social and cultural rights

Landmine Survivors Network would like to thank the Working Group for its fine
work in preparing the draft before us.

The provision on general obligations is critical to ensure that States understand
broadly what their commitments are in implementing their substantive obligations,
which I emphasize are and must continue to be much broader than the narrow approach
of non discrimination proposed by the European Union.

To echo South Africa, Jordan, Lichtenstein, Mexico and many other delegates,
as important as non discrimination is in the context of this treaty, the concept
of full inclusion is about more than just the absence of non discrimination.
As reflected in the draft text, we believe that the Convention must reflect
the full range of civil, political, economic, social, and cultural rights, which
on the basis of our work with survivors in scores of mine affected countries
are necessary if our human rights are to be enjoyed.

Further, the proposal to remove States’ obligation to take measures to eliminate
discrimination by “private enterprises” is of deep concern, and unnecessary.
First, other conventions have extended State obligations to the private sector,
and this treaty should require no less of States in the disability context.
Second, discrimination against persons with disabilities happens to a large
extent in the private sector, namely work and accessibility, to identify two
key areas.

We would also like to affirm Thailand’s proposal on subparagraph c, now reading,
“to integrate disability issues into all economic and social development policies
and programmes, including international cooperation.”

The text should not diminish PWD:s rights compared to the rights given in the
CCPR, the “Convention on the Civil and Political Rights”.

”… ensure the full realisation of all human rights and fundamental freedoms
for all individuals within their jurisdiction without discrimination…”. It can
be interpreted as the rights cover PWD who are non-citizens, but not other non-citizens.

WNUSP COMMENT: It should be noted that paragraph 2 does not replicate article
18 paragraph c, and that they are complementary. Provisions requiring the involvement
of people with disabilities in policymaking and programmatic action are also
included in specific issue areas, in article 5(2)(d), article 6(c), and article
21(m). The Ad Hoc Committee may wish to consider whether any other issue areas
require particular emphasis on the obligation to consult with people with disabilities
and their representative organizations.
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